Utility patents in Tomatoes and OSSI Implications

[Steph S]

Looking like a huge tomato year for you William! 
My starts are just getting their first true leaf.  Not exactly the numbers I expected but I decided to live with it instead of re-sowing.  There are some extra OP's in the batch I started for the farm, so if I really have the space or want to round out what size or color ends up on the plate and in the freezer, I can snatch a few of those.  Friend of mine wants an early pink beef to select, so I may keep a Pervaya lyubov to get a cross in to send him for that project.
Another cool thing with the farm tomatoes, we found some old seed of Black Cherry, which is one of the parents of the Skippers - the farm selected indeterminate Skipper which is also F7 or F8 and probably stable, so will have a chance to compare for the important features:  taste/quality, splitting and shelf life, earliness, disease resistance, and the big one, yield.   I'm pretty sure there will be issues with the yield, because iirc that selection has a short truss architecture and I don't expect it to match single stem yield in black cherry or sungold - the farm favorite for single stem and another good earliness standard.  So on doing this comparison, we can decide on the next steps, do a cross for the long truss.  I do have that trait in another Skipper line, that is the only extra plant I'm still tempted to start at this point.

I've also been reading up on the OSSI pledging process, and that led me to read up on patents, plant breeders rights, etc. Suddenly realizing I did not even know the patent status of the parent material I used for my crosses starting a decade ago and long before I had given any thought to restrictions on using OP's as breeding material as now exists in the US and EU.  I have made liberal use of OP's of Russian origin which are really the bedrock gene pool for my climate conditions.  But as it turns out they are mostly cv's not heirlooms.  As far as I can tell from internet sources, Russia like Canada has not been granting utility patents on cv's, in other words the protections under plant breeders rights do not restrict their use in breeding.  I hope that is the case. Meanwhile it was pretty shocking to realize the extent of utility patents on current vegs, which certainly cements my resolve to pledge whatever I get done to open source.
Also since commercial seed distribution isn't something I expect to have time to get organized this year, I think the plan will be to wait and release Skipper and Rodney together to make it worth the effort.     Really hoping the Rodney F6 is stable for taste, because other important traits seem to be very stable.  Will have a proper taste test this year too, which has totally been missed during the pandemic.   

[William Schlegel]

That is interesting regarding pledging things OSSI and the germplasm status.

I would really like to know more especially in regard to my own tomato germplasm collection. Are any of them problematic legally to breed with is namely what I would want to know? If one was I would be likely to just freeze the seed and wait for the utility patent or whatever to expire.

Exserted Orange, Exserted Tiger, and Mission Mountain Sunrise all of which I submitted to OSSI have just been in limbo for the longest time and I have never gotten an answer one way or another. One thing about that is they were all to be breeding material and I am not sure how long I want to maintain them- in some ways I want to keep moving forward with my goals which always seem to involve subsequent crosses including crossing those three lines together. MMS I already have MMS x BH F2 seed produced for an improved version. I've theorized that might be easier to pledge because BH is OSSI already but that is also true with Exserted Orange- though the cross happened in someone else's garden I had it since F2 and I was only pledging my part of the population under that name. Still might just get an email one of these days one way or another.

With the fava bean they just suddenly approved it and now it is OSSI.

Crossing OSSI tomatoes to OSSI tomatoes would undoubtedly always be fine. As would true heirlooms. I would imagine wild accessions would be ok. I could probably live with just crossing OSSI tomatoes to wild accessions if I had enough wild accessions.

I have sort of assumed that hybrids are semi-fair game because they are protected from copying by their hybrid nature but they could include utility patented traits right even though non-gmo?

It is the unknown status thing that worries me?! Maybe I should start looking around for utility patent info on my seed collection?

[Steph S]

Yeah, this is what I picked up from reading about the current state of utility patents - that they are not just being applied to GMO's but to all kinds of conventional breeding across the spectrum of veggies for ag and garden markets.  And the utility patents do often restrict the use of the material in breeding.
To understand the OSSI process I read some of the threads here, and then looked at the application form, which clued me in that, of course! the source material can't be under a utility patent or it would be not possible to pledge.  Of course.  It just had never occurred to me that any of the material I used could be under a patent that barred from breeding with it for 20 years.
Also I realized that in the OSSI approval process, they have to search patents on material that isn't clearly open source.    So I started looking for information about my parent material to try and figure it out.  I wouldn't want to waste anybody's time if it turned out that that it couldn't be open sourced due to an owned parent.

The worst part of it is that patent status really isn't advertised with the seeds that are sold.  Granted most of my tomato seed came from seed sharing community with no chance of a 'bag tag' or even fine print.  I was never really interested in any hybrids as breeding material, and just as well.  Because yes they can and often are utility patented, apparently, and that means no assurance of the right to breed with them, unless they're 20+ years on the market.

[William Schlegel]

Hmm, I have not had much success making crosses very fast but this raises serious questions about the whole out crossing grex methodology without starting with specific known parents.

Using modern hybrids as a genetic source is important to tomato breeding because they contribute all those lovely resistances.

So that means I need to know if Iron Lady F1, Galahad F1, purple zebra f1, and Lizzano F1 have any utility patents if I want to do late blight breeding with all of the above. I would assume that Iron Lady F1 does not because Carol Deppe strongly recommended it.

[Steph S]

Iron Lady is probably over 20 years old?
I had a look for Galahad F1 and I found that there's no PVP on it, according to Osborne Seeds which sells it.  If there's no PVP, pretty sure there's no utility patent, as that is usually the second level of protection not stand alone for a plant afaik the companies that are into this will do both.
https://www.osborneseed.com
Also found that this is one seed seller that actually provides information on the pvp status of most of their products.  Kudos.

OSA suggested the information should be provided by seed sellers,  but most often isn't.

[William Schlegel]

Iron Lady was released in 2013 that could mean it has 11 years to go but I suspect it was never utility patented thus Carol's regard for it.

I also sort of suspect that Artisan seeds would not utility patent so Purple Zebra F1 may be ok to use.

Lizzano F1? I don't really even know who bred it?

Same with Cloudy Day F1 Burpee?

I don't really have a lot that I worry about that much.

One positive thing about taking something through the seven or so generations to stability. That would give a utility patent seven years to expire.

One thing about heirlooms and OP types that are just bred by amateurs there is less to slap a patent on to trait wise. I suppose that is a lot of what made the whole Dwarf Tomato Project safe to OSSI pledge is they were mostly Heirloom x Heirloom crosses.

I really like the blue skinned tomato diversity from breeders like Lee Goodwin and Brad Gates.

[Garrett Schantz]

That is interesting regarding pledging things OSSI and the germplasm status.

I would really like to know more especially in regard to my own tomato germplasm collection. Are any of them problematic legally to breed with is namely what I would want to know? If one was I would be likely to just freeze the seed and wait for the utility patent or whatever to expire.

Exserted Orange, Exserted Tiger, and Mission Mountain Sunrise all of which I submitted to OSSI have just been in limbo for the longest time and I have never gotten an answer one way or another. One thing about that is they were all to be breeding material and I am not sure how long I want to maintain them- in some ways I want to keep moving forward with my goals which always seem to involve subsequent crosses including crossing those three lines together. MMS I already have MMS x BH F2 seed produced for an improved version. I've theorized that might be easier to pledge because BH is OSSI already but that is also true with Exserted Orange- though the cross happened in someone else's garden I had it since F2 and I was only pledging my part of the population under that name. Still might just get an email one of these days one way or another.

With the fava bean they just suddenly approved it and now it is OSSI.

Crossing OSSI tomatoes to OSSI tomatoes would undoubtedly always be fine. As would true heirlooms. I would imagine wild accessions would be ok. I could probably live with just crossing OSSI tomatoes to wild accessions if I had enough wild accessions.

I have sort of assumed that hybrids are semi-fair game because they are protected from copying by their hybrid nature but they could include utility patented traits right even though non-gmo?

It is the unknown status thing that worries me?! Maybe I should start looking around for utility patent info on my seed collection?

https://biopirateria.org/65000-people-opposed-to-syngenta-patenting-south-american-tomatoes/?lang=en

Tried looking around and it seems like characteristics and other things can be patented. I think that since we are already using a lot of these things we might be fine.

[Nicolas]

PVP is not the same as utility patent. Breeders can use PVP in a cross to develop new cultivars.

https://www.ams.usda.gov/services/plant-variety-protection/pvpo-frequently-asked-questions

17. What exemptions are there to the protection provided?
In general, there are two exemptions.
1. A research exemption to allow the use for breeding to develop a new variety; and
2. A right to save seed exemption to allow the saving of seed that was lawfully obtained from the breeder for the sole use of replanting on one's land.

Maybe this discussion should be moved elsewhere ?

[William Schlegel]

Done, I think this may be the first time I have used my tomato moderator power.

[Steph S]

Artisan Seeds OP tomatoes are PVP protected, no utility patent.  So they are free to breed with.

One thing about the patent process, it is quite expensive and therefore only really appealing for companies operating at a huge scale.
In fact it is the big players in the seed industry that are taking advantage of that law.
So one approach to screening breeding material would be to determine what seed company produced it, and what their policies and practices are.

The second issue is jurisdiction - where does it originate, and what are the laws in that country.

I found some information about patent laws and treaties on plant breeders rights in different countries here:
https://www.paritypatent.com/plant-breeders-rights/
They are basically the same for signatories to UPOV.
The same site also has a searchable database on patent law in different countries.  However this page is not slanted towards plant patents and it isn't mentioned, except where it is expressly prohibited, for example in Canada, plants and animals are listed as 'unpatentable'.
That isn't the case in Russia, so I really don't know what the big companies are doing there in the way of patents.

It is unfortunately not a great time to go poking around the Russian web, with a lot of things shut down and/or under troll patrol.
So I was wondering if anyone else had experience with the big companies like Aelita, Russky Ogorod, or others, and their patent policies.

[Diane Whitehead]

Tatiana lists 215 Russian tomatoes and notes whether they are op, op heirloom, op commercial.

http://tatianastomatobase.com/wiki/Russian_Tomato_Seeds

Here is one example:   Knopka       seed source:   CV Aelita 12

[bill]

The other thing that you might need to look out for is material transfer agreements (MTAs or bag tags).  These are very common on materials shared from genebanks and corporate seeds and are often not passed along when the original requester/purchaser shares the material.  Unlike patents or PVP/PBR, MTAs are contracts that can specify anything, including things like limited generations of propagation or no breeding.  Many genebanks pass "public domain" MTAs that specify that either the variety (common) or the variety and its derivatives (rare) must remain in the public domain.  The latter is not compatible with OSSI.

[Vesa Tee]

My understanding is that the patent needs to be filed in each country separately. For example, a patent for a Russian tomato variety would need to be filed in Canada to get the protection in Canada. Patents granted in Russia (or any other country) should not be automatically valid in Canada. There is an international patent system too (PCT), however, it only makes the process of applying the patents in each country easier as you need only one application in English. Similar rules should apply to utility patents.

A PCT application does not itself result in the grant of a patent, since there is no such thing as an "international patent", and the grant of patent is a prerogative of each national or regional authority.

https://en.wikipedia.org/wiki/Patent_Cooperation_Treaty

[William Schlegel]

Here is the TGRC MTA as currently posted on their website at https://tgrc.ucdavis.edu/MTA/TGRC-MTA.pdf . I don't see anything in it that seems hugely concerning for wild species accessions. It seems like all it does is request acknowledgement of TGRC's important contribution to maintaining this material in any and all resulting publications. It also absolves the UC system of any liability for a number of common situations that could arise like contamination with transgenes, or wrong accessions being sent out, or stock becoming contaminated by other accessions and so forth. It does not seem to place any limits on public domain. Though it acknowledges the possibility that potentially some distributed materials may not be in the public domain and absolves the university system if that were to turn out to be the case. Not sure what to make of it all? I am also not entirely sure if it is precisely the same version I signed when I requested the few accessions, I have received from TGRC but the big one I remember is acknowledgement in publications which is still in it. This seems to me like it should allow OSSI variety development- if anyone else thinks or knows otherwise please chime in. There is a clause below about commercial or other licensing being required and I am not sure if that might apply? OSSI is itself sort of a bag-tag agreement correct?

"UC DAVIS C.M. Rick Tomato Genetics Resource Center
Material Transfer Agreement
These plant materials ("MATERIALS") requested from the C.M. Rick Tomato Genetics Resource Center ("TGRC") are the property of
The Regents of the University of California as represented by its Davis campus ("THE REGENTS") for distribution to companies,
institutions, universities and other entities ("USERS"). Use of the MATERIALS is subject to the USAGE RESTRICTIONS below. For
other use and commercial use, please contact THE REGENTS for appropriate licenses.
USAGE RESTRICTIONS:
BY ACCEPTING OR USING THESE MATERIALS, YOU AGREE TO BE BOUND BY THE CONDITIONS OF THIS NOTICE. You
may refuse to accept the conditions of this notice by returning the unused MATERIALS to the TGRC.
The MATERIALS are provided free of charge, and except as stated herein, without restrictions, by the TGRC to support research,
breeding, and/or educational projects involving tomato. The USERS may distribute the MATERIALS to third parties only if the third
parties are given a copy of this notice and agree to be bound by its terms, or if USERS provide third parties an agreement containing
terms that are at least as protective of THE REGENTS' rights as those contained in this Agreement. The USERS will use the
MATERIALS in compliance with all applicable statutes and regulations.
USERS will cite the UC Davis/C.M. Rick Tomato Genetics Resource Center in any publication(s) describing the research utilizing the
MATERIALS. The suggested acknowledgment statement is as follows: The MATERIAL was developed by and/or obtained from
the UC Davis/C.M. Rick Tomato Genetics Resource Center and maintained by the Department of Plant Sciences, University
of California, Davis, CA 95616.
The MATERIALS have not been thoroughly evaluated by the TGRC. THE REGENTS MAKES NO WARRANTIES OF ANY KIND,
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INCLUDING ITS ORIGIN, PURITY, TRUENESS TO TYPE, GENETIC BACKGROUND, AND THE PRESENCE OR ABSENCE OF ANY
TRANSGENES. The USER is responsible for verifying that genetic identity is correct in its own plantings, and the USER will notify the
TGRC of any potential problems it observes with the MATERIALS, such as aberrant segregation, incorrect phenotypes, unexpected
traits, or other problems.
Any MATERIALS provided pursuant to this Agreement are understood to be experimental in nature and may have hazardous
properties. THE REGENTS MAKES NO REPRESENTATIONS AND EXTEND NO WARRANTIES OF ANY KIND, EITHER
EXPRESSED OR IMPLIED. THERE ARE NO EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR
A PARTICULAR PURPOSE, OR THAT THE USE OF THE MATERIALS WILL NOT INFRINGE ANY PATENT, COPYRIGHT,
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rights in the intellectual property of THE REGENTS except as explicitly set forth herein.
THE REGENTS WILL NOT BE LIABLE FOR ANY DIRECT DAMAGES, LOST PROFITS, COSTS OF PROCURING SUBSTITUTE
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[Steph S]

Hmmm that makes it pretty clear you have to do your own patent search.  It seems doubtful that wild tomatoes would be patented in any way.  Even the utility patent that is possible on plants now, is pretty clear that 'novelty' has to be demonstrated before a patent would be granted.  Exclusions of wild material are clearly stated in PBR and it seems doubtful that a wild accession would pass the novelty test.